Judges Mull Strike Rights of Nonunion Workers

SEATTLE (CN) – The 9th Circuit struggled to determine whether a federal judge properly blocked nonunionized Seattle-Tacoma Airport employees from striking. Aircraft Service International had won the injunction in October 2012 after its airline fuelers threatened to walk off their jobs because of allegedly unsafe working conditions and the suspension of a worker. The contractor refuels approximately 75 percent of the airplanes at Seattle-Tacoma and said a strike by nonunionized workers violate the Railway Labor Act (RLA). Aircraft Service had pursued an injunction against labor advocacy group Working Washington and its campaign director, Jonathan Rosenblum, as well as Alex Popescu, the suspended employee, and all other unnamed employees who acted to “encourage, support and/or engage in the illegal job action.” Though the workers do not belong to a union, they had “encouragement and support” from the International Brotherhood of Teamsters and the AFL-CIO Local 117, according to the complaint. Aircraft Service had initially named both groups as defendants but they were later dropped from the suit. In granting the injunction, U.S. District Judge James Robart found that the Railway Labor Act is “not so narrow that it only applies to disputes between carriers and recognized unions. By its terms, it applies to any dispute between a carrier and its ’employees.'” Excluding non-union members would lead to the “absurd result” of making first-step strikes illegal for union employees but lawful for non-union workers, he added. David Dean, representing Working Washington and the employees, urged a three-judge panel of the 9th Circuit to lift the injunction in Seattle last week. He told the panel that the Railway Labor Act does not apply to nonunion workers, and said his clients went to the National Mediation Board to prove it. The act requires employees to go before the board before a strike, but the board turned Aircraft Service employees away because they lacked a collective bargaining representative, Dean said. Judge Milan Smith asked why the workers “gratuitously” appeared before the board if they claim they are exempt under the Railway Labor Act. Dean replied that it was to “show it was not the proper procedure.” “We wanted to demonstrate to the District Court that the agency that applies the statute agreed with us that there is no catch all administrative procedure for unorganized employees,” Dean said. Smith then asked Dean if it was his view that the workers didn’t need to do anything else before being allowed to strike. “Exactly!” Dean exclaimed. Judge Andrew Kleinfeld lectured Dean, : “You’re trying to get the good, which is the ability to organize a strike, without the bad, which is being subject to a union representation election and mediation.” Aircraft Service’s lawyer, Douglas Hall, told the panel “you don’t have to be a labor organization to be a representative” under the act. “You can be a Working Washington,” he said. Kleinfeld took issue with this remark. “They can’t speak for me unless I authorize them,” he said. The judge also asked both sides about the definition of a “strike.” “I’m wondering if there even is such a thing as a strike by unrepresented workers as opposed to individuals deciding not to come to work every day,” Kleinfeld said. Hall replied that “if they’re banding together collectively,” it’s a strike. He argued that the court should find that employees have a right to strike “any time for any reason without limitation.” Smith quizzed Hall on his interpretation of the Railway Labor Act. “If you don’t recognize them, what is there in the RLA that requires them to do anything before they exercise a right to strike?” he asked. “The structure and purpose of the act,” Hall said.